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ELCDismissedNot stated in the judgment (interim application in suit relating to L.R No. 31990, formerly Uns. Agricultural Plot No. 'D', Athi River)· [2020] KEELC 905 (KLR)

Ali Abdi Ali v Rhine Forwarders Ltd & 2 others [2020] KEELC 905 (KLR)

Environment and Land Court
23 October 2020
1,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The court ruled its earlier order never authorised demolitions or evictions, and refused to change it, so the defendant's application failed with costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O. A. Angote, J) determines the 1st Defendant's application dated 15th June, 2020, brought under Order 40 Rules 1, 2 and 7 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act. The 1st Defendant sought clarification that the court's orders of 29th October, 2019 did not authorise the demolition of its houses on L.R No. 31990 (formerly Uns. Agricultural Plot No. 'D'), Athi River, or the eviction of its members, and alternatively an injunction restraining the Plaintiff from demolishing or evicting pending determination of the suit. The Defendant deponed that on 13th and 14th June, 2020 the Plaintiff, with hired goons and under the supervision of the OCS Mlolongo, demolished houses and evicted members purporting to enforce the court order. The Plaintiff opposed, asserting ownership of the parcel through his association, alleging the Defendants were in contempt and were claiming a different parcel (LR 24628 at Mulinge Scheme). Counsel for the Defendant relied on the eviction procedures in Sections 152E-152G of the Land (Amendment Act), 2016, UN Guidelines on Evictions, and Kenya Breweries Ltd v Washington O. Okeyo on interlocutory mandatory injunctions. The court held the order of 29th October, 2019 was clear, did not authorise demolition or eviction, and required no interpretation; any aggrieved party should have sought variation. Declining to determine entitlement to the suit property, the court dismissed the application with costs and directed the parties to fix the Plaintiff's application dated 18th October, 2019 for hearing.

Key legal issues

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01

Whether the orders of 29th October, 2019 authorised demolition and eviction

Holding

The orders did not authorise demolition; they merely restrained the Defendants from entering or interfering with the suit property, and the parties' claim of confusion was a misconception

Reasoning

The court reviewed the exact terms of the order of 29th October, 2019, which restrained the Defendants from entering, blocking agents, selling, constructing or interfering with the suit property. It found the order clear on its face and capable of no other meaning: it protected the Plaintiff's possession pending hearing, and conferred no authority to demolish structures or evict occupants. Any party aggrieved by the scope of the order should have sought variation.

p. 3
02

Whether the court should issue an interlocutory mandatory injunction restoring the Applicant's position

Holding

The application was dismissed; the court declined to grant the mandatory injunction

Reasoning

Counsel relied on Kenya Breweries Ltd & Another v Washington O. Okeyo on the tests for interlocutory mandatory injunctions, which are not granted in the absence of special circumstances. The court also noted it was not determining the Plaintiff's injunction application dated 18th October, 2019, and would not delve into who is entitled to the suit property at this stage, directing the parties to fix that application for hearing.

p. 3
03

Statutory procedures governing evictions

Holding

Evictions must comply with Sections 152E, 152F and 152G of the Land (Amendment Act), 2016, including notice and procedural safeguards

Reasoning

The Applicant's counsel submitted that Section 152E requires a notice of not less than three months before eviction from private land, Section 152F allows a court to confirm, vary or cancel such a notice, and Section 152G prescribes mandatory procedures during evictions, including protection of vulnerable groups, respect for dignity, and priority for affected persons to demolish and salvage their property. The court recorded these submissions but did not found its decision on them.

p. 2

Legal principles established

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  • An interlocutory mandatory injunction will not normally be granted in the absence of special circumstances
  • Evictions from private land require the statutory procedure under Sections 152E-152G of the Land (Amendment Act), 2016, including a notice of not less than three months and mandatory procedures protecting those affected

Court orders

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  1. 1.The 1st Defendant's Application dated 15th June, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 7
  • Civil Procedure ActSections 1A and 1B
  • Land (Amendment Act), 2016Sections 152E, 152F, 152G, 152H

Cases cited (1)

  • Kenya Breweries Ltd & Another vs. Washington O. Okeyo
    [2002] eKLR
Jurisdiction invoked
Inherent jurisdiction under Sections 1A and 1B of the Civil Procedure Act and Order 40 Rules 1, 2 and 7 of the Civil Procedure Rules; court seized of the earlier injunction application dated 18th October, 2019

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ali Abdi Ali v Rhine Forwarders Ltd & 2 others [2020] KEELC 905 (KLR)", Case Analysis (2020). Not stated in the judgment (interim application in suit relating to L.R No. 31990, formerly Uns. Agricultural Plot No. 'D', Athi River). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/905/eng@2020-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.